This article is written by Surbhi Jindal, a law student at Dr. B.R. Ambedkar National Law University, Haryana. In this article, she attempts to critically analyze the concept of anticipatory bail in the case of State v. Varun Hiremath. 


The doctrine of ‘Bail is a rule; jail is an exception’ is a typical example of people committing crimes and then getting bail from the lockups. Another doctrine of criminal jurisprudence, ‘One is innocent until proven guilty’, also aids in promoting the former doctrine. 

In India, there are different kinds of bail. One such bail is anticipatory bail. Section 438 under the Code of Criminal Procedure, 1973 discussed the concept of anticipatory bail in India. 

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Whenever any person apprehends that they will be arrested for any act committed by them, they may apply for Anticipatory Bail, saving them from jail. This bail is granted in the cases of non-bailable offenses by the Sessions Court and High Court. 

In the case of State v. Varun Hiremath, 2021, the accused was granted bail by the Delhi High Court. He went against the orders of the Sessions Court and appealed in the High Court, demanding anticipatory bail. The complainant, later on, approached the Hon’ble Supreme Court, challenging the decision of the Delhi High Court. 

This article attempts to analyze the case of State v. Varun Hiremath, in light of anticipatory bail, exhaustively. The article’s author has tried to simplify the facts and arguments put forward by both the sides and the judgment so derived. Let us have a look at what happened in the case and the issues involved in it. 

Facts of the case

  • The parties involved in the present case are a 22-year old Pune-based woman and a 28- year old man identified as Varun Hiremath, a Mumbai T.V. journalist with E.T. Now. 
  • The present case traces its history to lodging (First Information Report) FIR in Chanakyapuri police station, Delhi, on February 23, 2021. In her report, the 22-year Pune-based woman (complainant) alleged that Mr. Varun Hiremath (accused) had raped her at a five-star hotel in Delhi on February 20, 2021. 
  • The complaint was filed under Section 376 (Punishment for Rape), Section 342 (Punishment for wrongful confinement), and Section 509 (Insulting modesty of a woman) of the Indian Penal Code 1860
  • The complainant and the accused Varun Hiremath were the residents of Pune and Mumbai, respectively. They have known each other since 2017 on Tinder, a geosocial networking and online dating platform, and have been friends since then. 
  • Even in the past, when the complainant traveled to Mumbai from Pune, the accused had borne all her costs and expenses. There is evidence of their Whatsapp and Instagram chats indicating their love and passion for each other. 
  • On January 30, 2021, the accused informed the complainant about his visit along with his family to Delhi to attend a marriage ceremony. He insisted the accused come over to Delhi and have a meeting with him. Accordingly, the complainant arrived on February 20, 2021 (the incident’s date) at National Capital Delhi, where they both met in Khan Market, Delhi. 
  • Around 11:00 am, they decided to go to ITC Maurya, Chanakya Hotel, Delhi. The accused was staying with his family in the same hotel. He booked two rooms in that hotel, one for his family and the other double occupancy room for him and the complainant, to indulge in sexual relations. 
  • The accused demanded that the complainant disrobe herself and indulge in sexual intercourse with him in the room. The complainant denied the request of the accused. But even after the negative response from the complainant, the accused forcibly inserted his finger multiple times into the vagina of the complainant. 
  • He also forcibly inserted his penis into her mouth and asked her to give a blow. All of this was done without the consent and will of the complainant. Not only this, the complainant vomited multiple times on him, and she went to the washroom to clean herself; the accused also accompanied her and forced her to have a sexual relationship. The complainant again denied the same. 
  • During this, the accused received a call from his father, and he went off from there. But before going, he instructed the complainant not to move from there as he wanted to maintain a physical relationship with her. The accused also threatened her with the bills that cost Rs. 11,000 to him. Seeing all this, after the accused left, the complainant felt very uncomfortable and bad.
  • The complainant was forced to bow down towards the accused’s demand as she feared getting injured if she attempted to leave the room. 
  • The accused, on his behalf, said that there was consensual sexual intercourse between them as they both have been involved in such a relationship in the past. Also, he stated that the report lodged was false and frivolous as there was a delay in the registration of FIR, i.e., delay of 3 days, as the complainant complained about February 23, 2021. 
  • The accused accordingly prayed for anticipatory bail in the Sessions Court of Delhi and Delhi High Court subsequently. 
  • In the first stance, when he prayed for anticipatory bail in Session Court, Justice Shri Sanjay Khanagwal dismissed the application for Anticipatory bail on March 12, 2021. The arguments were heard by both sides. 
  • The Ld. Defense counsel for the accused asserted that the act was consensual and the accused was falsely implicated in this case. To support this, he provided that the complainant had herself given her identity documents at the reception. This shows that she was keen to go to the hotel room and indulge herself in sexual relations. 
  • The defense counsel further stated the contradictions in the statement as per Section 164 of the Code of Criminal Procedure, 1973. The contradictions noted were that the facts were not actual, and they have been cooked up in the present case and have been drafted on a piece of legal advice to insert the ingredients for the commission of the offense. 
  • The defense counsel’s other arguments were the previous history of involvement in sexual activity between the accused and the complainant and the WhatsApp and Instagram chats that indicated the love and passion for each other. 
  • Following cases were cited by the Ld. defense counsel in support of his argument:
  • On the other hand, the Ld. Counsel for the complainant submitted various arguments countering the Ld. defense counsel. He submitted that the complainant was not willing to indulge in any sexual activity from the beginning. She spoke to the accused in the lobby of the hotel room about her unwillingness.
  • Countering the argument of submitting the identity documents on reception, the Ld. Counsel stated that the papers were given by mistake, thinking it to be the Covid-19 protocols. The complainant had asked the accused multiple times to stop from performing such acts. However, the accused did not stop. 
  • Seeing no option, the complainant had to submit before the accused, seeing his aggressive nature. She feared that if she did anything to escape, she might get injuries from the accused. He contended that the WhatsApp and Instagram chats between the accused and the complainant also showed how the accused after the incident happened, messaged the complainant in the evening from 8:30 pm onwards, feeling guilty for his actions. 
  • The Ld. Counsel for the complainant said that the matter of no and yes should be considered only when the complainant is given a chance to record her testimony. But the point of fact here is that anticipatory bail should not be granted; otherwise, the case would lose its attributes under Section 375 and Section 376 of Indian Penal Code, 1860, on which the FIR has been registered and that the investigation is still pending in the Court of law. 
  • The Counsel also stated that as per Section 53 (A) of the Indian Evidence Act, 1872, the evidence of character or previous sexual experiences is not relevant in some instances under Section 376 of the Indian Penal Code, 1860. Therefore, according to this, the consent of the complainant cannot be implied by the accused. 
  • Section 53 (A) is supported by Section 114 (A) of the Indian Evidence Act, 1872, which presumes the absence of consent in some instances for the rape and sexual intercourse by the accused if it is proved. 
  • The Hon’ble Justice said that if the woman in her complaint said that she did not consent, then that means she disagreed. The presumption under Section 114 (A) will not be ignored in such circumstances. Though this question has to be determined at trial by all the evidence collected by the investigation officer to date, it can indeed be said that this is not a case where the absence of consent can be presumed. Looking at all these arguments and facts and circumstances, the bail application was dismissed by Patiala House Court, New Delhi. 
  • In the second stance, the accused approached the Delhi High Court against the decision of the Trial Court. The arguments in Varun Hiremath’s anticipatory bail application were heard by a single judge bench of Justice Mukta Gupta in Delhi High Court. 
  • The Delhi High Court observed that mere insistence on the complainant could not be construed as coercion or fear. Accordingly, it granted anticipatory bail to the accused. On April 9, 2021, the accused was provided interim protection from the arrest provided he must join the police investigation as and when called. 
  • After that, aggrieved by the decision of the Delhi High Court, the complainant, by way of Special Leave Petition, approached the Supreme Court challenging the decision of the Delhi High Court. 

Issues involved

The issue involved in the case was “Whether the anticipatory bail granted by Delhi High Court is valid or not?” 

Relevant legal provisions involved

The legal provisions involved in the case are all presented here as follows: 

Indian Penal Code, 1860

  • Section 342: It defines the punishment for committing the offense of wrongful confinement of any person. The sentence described in the section is either imprisonment that can extend to one year or a fine of rupees 1000 and even both. 
  • Section 375: This section defines rape as sexual intercourse with a woman under six main categories. 
  • Section 376: Punishment for sexual assault is defined in Section 376 as imprisonment for not less than seven years extendable to 10 years, or imprisonment for life. 
  • Section 509: The section talks about the punishment for intended words, gestures, and acts intended to insult and outrage the modesty of a woman. The sentence described herein is imprisonment of one year or fine or both.

Code of Criminal Procedure, 1973

  • Section 164: Section 164 deals mainly with the recording of confessions and statements before the magistrate. 

Indian Evidence Act, 1872

  • Section 53 (A): This section discusses not making mandatory the evidence of character or previous sexual experience in some instances. The consent made shall not be relevant in the case concerning sexual activities. 
  • Section 114 (A): This section discusses the presumption of absence of consent in certain prosecutions for rape cases. 

Arguments advanced

The Senior Counsel Nitya Ramakrishnan appeared for the complainant and submitted the following arguments:

  • The central argument submitted was that the anticipatory bail granted by the Hon’ble Delhi High Court in the present case had disregarded the statutory provisions that prevail in the law. 
  • The Delhi High Court has virtually granted the benefit of the doubt only based on a selective reading of statements submitted under Section 164. 
  • She added that the accused tried to evade the arrest for 50 days, and the whole family had left home. All the non-bailable warrants posted on their homes were eventually ignored. 
  • She further said that the Indian Penal Code, 1860 states that every action need to have unequivocal consent. Adding to it, she said that the complainant never gave the continued permission. The penetrative act was entirely without her permission, and therefore the accused should comply with the custodial interrogation.
  • “But during the High Court proceedings, the accused did not even turn up for the custodial interrogation. Why should he not comply with the orders?” The Senior Counsel concluded her proceedings. 

Judgment of the Court

The Hon’ble Supreme Court observed that they are not inclined to interfere with the High Court’s judgment. The vacation bench of Justices Navin Sinha and Ajay Rastogi accordingly dismissed the Special Leave Petition filed by the complainant in the rape case. 

The bench questioned, based on the normal human conduct, behavior, and understanding, “If a man and woman are in a room, the man makes a request and the woman complies with it, do we need to say anything more at this stage?”. It further clarified that the question being asked was purely for bail. 

The Court also asked the Senior Counsel to read the statement filed under Section 164, i.e., the fully narrated and supported version given by the complainant. Furthermore, when the Senior Counsel put up a question before Hon’ble Supreme Court regarding the penetrative act and its nature of offense by citing an example that read as, 

“Let’s assume a situation, where I disrobe myself, but there is a particular activity man wants to indulge in, and I say no to it, and it’s a penetrative act, it becomes an offence.” 

The Hon’ble bench of the Supreme Court replied that this is a question of broader ambit that has to be interpreted and decided later. As of now, they were only concerned with the matter of cancellation of bail. 

The Hon’ble Supreme Court, therefore, dismissed the Special Leave Petition filed by the complainant. 


The anticipatory bail granted by the High Court serves to be the guiding light for the judgments of rape cases as well. It sets a precedent and recognizes the high need for gender equality. Justice Mukta Gupta rightly pointed out that whatever was going on in the petition was unknown to anyone. 

On the basis, it truly justifies that a woman doesn’t need to be only right in such cases, and hence the anticipatory bail was granted. At this point, nothing can be said about who is wrong and right. What can be prayed for is the ultimate justice to be served in the society that acts as a relevant precedent for the community. 

Once again, the author of this article repeats, ‘No one is guilty until proven’. 


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